Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Housing Corporation of Louisville relative to the open records request of Montez L. Cosby violated the Open Records Act. We conclude that the response of the agency was procedurally deficient and was substantively consistent in part and inconsistent in part with the Act.
By letter dated June 11, 2002, Mr. Cosby made a request for the following documents:
1. A copy of the Criminal Trespass List dated 1994 to 1999.
2. A copy of any office memorandums or investigation notes concerning Montez Cosby dated between 1997-1999.
In his letter of appeal, dated June 19, 2002, Mr. Cosby indicated that he had received no response to his request.
After receipt of the Notification of appeal and a copy of Mr. Cosby's letter of appeal, John J. Llewellyn, Attorney at Law, provided this office with a response on behalf of the Housing Corporation to the issues raised in the appeal and a copy of its response, dated June 27, 2002, to Mr. Cosby's open records request dated June 11, 2002.
In responding to Mr. Cosby's June 11, 2002 open records request on behalf of the Authority, Mr. Llewellyn advised:
1. "A Copy of the "Criminal Trespass List dated from 1994 to 1999."
RESPONSE
Pursuant to KRS 61.878(1)(a) & (h) the information of the nature sought by this request is exempt from information that the agency would otherwise be required to furnish in the course of an open records request. The request seeks the individual names of persons who have been warned of their status as a potential "trespassers. " [sic] It is regarded by the Housing Authority of Louisville that the disclosure of the names would constitute a clearly unwarranted invasion of personal privacy. However, to avoid further issues regarding this request be advised the name Montez L. Cosby does not appear on the 1994 to 1999 HAL list.
Regarding any additional information sought by this particular request it is the response of the Housing Authority of Louisville that pursuant to the provisions of KRS 61.878(1)(h) this information is maintained in the course of law enforcement efforts conducted by the agency. That the disclosure of such information is not required of this agency in that disclosure of such information may compromise law enforcement efforts of the agency.
2. "A Copy of any office memorandums or investigation notes concerning Montez Cosby dated between 1997 and 1999."
RESPONSE:
Based on the information that you have furnished to the Housing Authority of Louisville the name Montez L. Cosby does not appear on the HAL trespass list nor does that name appear in any office memorandums or investigation notes dated between 1997 - 1999.
In its response to the letter of appeal, the Authority reiterated its response to Mr. Cosby and argued the appeal should be mooted, as Mr. Cosby had been provided with the information he requested.
After receipt of the Authority's responses, this office requested additional information from the agency describing the nature of the Criminal Trespass List and how disclosure of the list would constitute a clearly unwarranted invasion of personal privacy of the persons named on the list, under authority of KRS 61.878(1)(a), and that disclosure of the information on the list may compromise law enforcement efforts of the agency, thus, making the record exempt from disclosure under KRS 61.878(1)(h).
In response to our request, Mr. Llewellyn provided the following response, which stated in relevant part:
Enclosed is an excerpt of a listing from the "1991 Housing Authority of Louisville". Please note that Mr. Montez Cosby's name does appear on the list. The 1991 list is no longer active and Mr. Cosby does not appear on any other "Housing Authority of Louisville Trespass List" (active or inactive.) I would also note that the 1991 listing is outside the range of dates of Mr. Cosby's request.
Regarding [an] explanation of the exclusions to the Kentucky Open Records Act, please understand that the maintaining of a Trespass List is a means of law enforcement that is employed by Public Housing Agencies in cooperation with local law enforcement authorities. The Louisville Police Officers assigned to patrol Housing Authority property cannot summarily remove or arrest people from public housing authority property unless there exist [sic] a justifiable cause for indications of criminal activity. Many individuals who are not specifically named in a lease as a member of a household know how to take advantage of this circumstance by advising police officers that they are on the premises with permission of another resident. Without the designation that one is a trespasser law enforcement officers have no means to refute this contention when confronting individuals who are suspected of criminal activities while on Housing Authority property.
The list identifies individuals who law enforcement officers have observed to be loitering on HAL property and are suspected of engaging in unlawful conduct. The individual is cited with a notice regarding officer's observations and is only advised to leave the property. The citation is then given to the Housing Authority office of Safety and Investigation and the individual's name is placed on the Housing Authority of Louisville Trespass List." The process serves as a warning that a future occurrence may result in an arrest for criminal trespassing.
The list is maintained on yearly basis which is cumulative over a five year period. Names do not remain on the list for a period of more than five years unless there is good cause to renew that individual's status.
As you can see from the list illustrating the presence of Mr. Cosby's name the list contains information which is of a personal nature in the form of addresses and social security numbers. This is to insure that law enforcement officers are addressing the correct individuals and that other individuals are not unduly impacted by mis-identification. The Housing Authority regards the identification of an individual's social security number and their address as information of a personal nature. The position of the Housing Authority is not to disclose such information without authorization from that individual.
We are asked to determine whether the actions of the Authority to the open records request of Mr. Cosby constituted a violation of the Open Records Act. For the reasons that follow, we conclude that the response of the agency was procedurally deficient and was substantively consistent in part and inconsistent in part with the Act.
KRS 61.880(1) governs agency response to an open records request. That statute requires public agencies to respond in writing, and within three business days, to all open records requests, regardless of the identity of the requester or the nature of the records requested. If the agency elects to deny access to all or part of the records requested, it must cite the exception authorizing nondisclosure and briefly explain its application to the record withheld.
Mr. Cosby's request was dated June 11, 2002. As of the date of his letter of appeal, dated June 19, 2002, Mr. Cosby indicated he had yet to receive a response. The Authority's response to Mr. Cosby's June 11, 2002 request was dated July 27, 2002. Accordingly, we conclude that the agency's failure to respond to Mr. Cosby's request within three business days after its receipt constituted a procedural violation of the Open Records Act. KRS 61.880(1).
Addressing first the request for copies of "any office memorandums or investigation notes concerning Montez Cosby dated between 1997 and 1999," the Authority advised Mr. Cosby that it had no such records.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, the Authority's response, in affirmatively advising Mr. Cosby that it had no records meeting the parameters of this request was proper and consistent with the Open Records Act and prior decisions of this office and did not constitute a violation of the Act.
We address next the Authority's denial of the request for a copy of the "Criminal Trespass List dated 1994 to 1999," under authority of KRS 61.878(1)(a) and KRS 61.878(1)(h).
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In construing this provision, the Attorney General has repeatedly recognized:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, pp. 2, 3.
The Authority has not clearly established that it's Office of Safety and Investigation is either a law enforcement agency or an agency involved in administrative adjudication. Assuming, for the sake of argument that if falls within the class as a law enforcement agency, the agency has not established that the criminal trespass list was compiled in the process of detecting and investigating statutory or regulatory violations. The Authority explained that individuals are placed on the list as possible trespassers when it appears that they are loitering on HAL property, are not on the premises with permission of another resident, or there are indications or suspicions of the individuals engaging in criminal activity. The agency makes no claim that the record is part of an ongoing investigation.
Finally, even assuming that the Authority meets the first two parts of the three-part test, it fails to articulate how release of the list would compromise an ongoing investigation. In fact, the Authority in its response indicated that an individual named on the list is notified of his status by being cited with a notice by the officer and asked to leave the property. This office has previously held that a "bare claim" that premature release of an investigative record, without a description of the harm that would occur, was insufficient to qualify for exemption under KRS 61.878(1)(h). 01-ORD-122; OAG 89-11. The Authority's responses do not describe the harm that would result from premature release of the list. Thus, having failed to meet the three-part test, we conclude that the Authority's reliance on KRS 61.878(1)(h) as a basis for withholding access to the list is misplaced.
We turn next to the Authority's reliance on KRS 61.878(1)(a) as a basis for denying access to the criminal trespass list. That section permits public agencies which receive open records requests to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The Kentucky Supreme Court has enunciated a clear test for analyzing the propriety of a public agency's invocation of the privacy exception. In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992), the Court observed:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners, supra, at 328. As a result, there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records.
The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory function and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his life.
The Authority's explained purpose of the criminal trespass list is to allow the Authority and law enforcement officials to maintain a list of possible trespassers that have been observed loitering on HAL property, are not on the premises with permission of another resident, or are suspected of criminal activity. Disclosure of the list would permit the public to observe, at least to some extent, how the Authority is functioning in its efforts to control criminal activity.
The countervailing interest in nondisclosure of the individuals named on the criminal trespass list is minimal at best. This office has consistently recognized that although a person's name is personal, it is the least private thing about him and should only be withheld when there is a special reason provided by statute or court order, as in the case of adoption records. OAG 82-234.
In the instant appeal, the disclosure of the names of individuals that have been placed on the Authority's criminal trespass list would only be minimally invasive. Under the circumstances, we do not believe that they would have an expectation of privacy that their names would not be disclosed, since they received notice that their names were being placed on the list and were warned that a future occurrence might result in an arrest for criminal trespassing. We therefore find that the privacy interest of persons in the nondisclosure of their names is not a significant one.
We believe the public's interest in disclosure of the trespass list outweighs the minimal privacy interests of individuals named on the list. Disclosure will promote the public's interest in monitoring the activities of the Authority relative to controlling public safety and criminal activity. Accordingly, we conclude the Authority improperly denied Mr. Cosby's request for a copy of the criminal trespass list, under authority of KRS 61.878(1)(a).
However, this office has consistently recognized that a person has an expectation of privacy in personal information, such as his home address and social security number, which do fall within the privacy exception to public inspection under KRS 61.878(1)(a). Thus, a public agency may redact such personal information from public records and make the nonexcepted material available for inspection. KRS 61.878(4). Accordingly, the Authority should provide Mr. Cosby's with a copy of the requested list. The agency may require prepayment of costs of copying and mailing before making the record available. KRS 61.872(3).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Montez L. Cosby, # 14Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Will Seay420 S. 8th StreetLouisville, KY 40203
John J. Llewellyn545 So. Fourth Avenue1496 Starks BuildingLouisville, KY 40202